Terminating Pregnancy of Rape Victims: Amend the Law to avoid Prosecution of Doctors: Punjab & Haryana HC [Read Judgment]

The Punjab and Haryana High Court has requested authorities of AIIMS, New Delhi to reassess the possibility of termination of pregnancy of a rape victim whose gestation period of pregnancy has exceeded 24 weeks. Justice Paramjeet Singh Dhaliwal also advised the Central Government to consider making amendments to the Medical Termination Of Pregnancy Act, 1971 and clarify in so many words to the doctors that they will not be unnecessarily prosecuted if they act in accordance with the rules in good faith to save the life of a victim of rape or to prevent grave injury to her physical and mental health.

A rape victim had approached the High Court seeking termination of pregnancy on the ground that continuation of pregnancy would cause grave injury to her and would also be unsafe and dangerous for her life. The gestation period of pregnancy was not beyond 24 weeks at that time. As an interim order the Court gave the legal authority to the medical board to carry out the termination if the same is necessary for preserving her life and health. But the medical board did not choose to carry out termination of pregnancy.

DOCTORS FEAR UNNECESSARY PROSECUTION

Referring to the above decision by the Board not to terminate pregnancy, the Court said “It appears that doctors did not carry out termination of pregnancy for fear of prosecution under the penal provisions referred to in the foregoing paras of this judgment. This court is of the view that the fear of chilling effect of prosecution needs to be removed from the mind of doctors. Section 3 of MTP Act provides a defence when the termination is done in accordance with the conditions set out in the MTP Act. Further, a medical practitioner is protected by Section 8 of MTP Act for “any damage caused or likely to be caused by anything” for any act done in good faith under the MTP Act.” The court also added that termination of pregnancy in good faith which results from crime is otherwise permitted under the provision of MTP Act.

REASSESS POSSIBILITY OF TERMINATION OF PREGNANCY

Accepting the suggestions made by Amicus Curie, the Court said “I would request Director of AIIMS to constitute another medical board of equivalent or larger number of doctors as of the PGIMER to explore the possibility of termination of pregnancy. The Court requests the Director of AIIMS to do the needful as soon as possible and inform the Court about the actions taken. The petitioners will be at liberty to appear before the medical board of AIIMS at the earliest possible. The medical experts of AIIMS are further requested toprovide all the facilities including counselling etc. and explore the possibility for carrying out the termination of pregnancy if possible or other option in the best interest of the petitioner-victim. They are also requested to reserve a special room for petitioner No.1 and her family, as required at the appropriate time. In case the Board rules out the termination at this stage and petitioner No. 1 is required to take the pregnancy to its full term and the petitioners inform the Board about their unwillingness to keep the child, efforts should be made to make arrangements for the adoption of child by involving the concerned officials from Central Adoption Resource Authority (CARA). All the expenses incurred in this regard shall be borne by the department of health and family welfare, Haryana”.

DECIDE MTP ACT CASES ON FIRST DAY ITSELF

The Court has also observed that if, and when, any case is brought to Court for passing of any orders under the MTP Act, the said case can be determined on the first day itself by sending the woman to the medical board immediately for quick action if possible under the provisions of law. The need for filing of reply should not arise so as to avoid wasting of precious time available with the pregnant victim.

Read the Judgment here.